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(EXHIBIT 10(ff)
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ASSET CONTRIBUTION AGREEMENT
EFFECTIVE AS OF JANUARY 1, 1995
AMONG
ASARCO INCORPORATED,
COEUR D'XXXXX XXXXX CORPORATION,
XXXXXXXX MINING CORPORATION
AND
SILVER VALLEY RESOURCES CORPORATION
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TABLE OF CONTENTS
Page
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ARTICLE I
CONTRIBUTION OF ASSETS AND ASSUMPTION OF LIABILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.1 Contribution of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.2 Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.3 Assumption of Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.4 No Encumbrances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF ASARCO
CONCERNING THE ASARCO ASSET CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2. ASARCO Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.1 Property, Plant and Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.2 Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.3 Certain Rights of ASARCO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.4 ASARCO Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.5 ASARCO Permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.6 Other ASARCO Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF COEUR D'ALENE
CONCERNING THE COEUR D'ALENE ASSET CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 3. Coeur d'Alene Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 3.1 Property, Plant and Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 3.2 Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 3.3 Certain Rights of Coeur d'Alene . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 3.4 Coeur d'Alene Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 3.5 Coeur d'Alene Permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 3.6 Other Coeur d'Alene Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF COEUR D'ALENE AND
XXXXXXXX CONCERNING THE XXXXXXXX ASSET CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 4. Xxxxxxxx Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 4.1 Property, Plant and Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 4.2 Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 4.3 Certain Rights of Xxxxxxxx . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 4.4 Xxxxxxxx Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
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Section 4.5 Xxxxxxxx Permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 4.6 Other Xxxxxxxx Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE V
FURTHER REPRESENTATIONS AND WARRANTIES OF ASARCO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 5. Representations and Warranties of
ASARCO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 5.1 Organization, Power and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 5.2 No Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 5.3 Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 5.4 Ownership and Condition of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 5.5 Leases; Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 5.6 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 5.7 Governmental Approval; Third Party
Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 5.8 Compliance with Laws; Permits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 5.9 Tax Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 5.10 Disclosure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 5.11 Brokers' or Finders' Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE VI
FURTHER REPRESENTATIONS AND WARRANTIES
OF COEUR D'ALENE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 6. Representations and Warranties of
Coeur d'Alene and Xxxxxxxx . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 6.1 Organization, Power and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 6.2 No Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 6.3 Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 6.4 Ownership and Condition of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 6.5 Leases; Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 6.6 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 6.7 Governmental Approval; Third Party
Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 6.8 Compliance with Laws; Coeur D'Alene
Permits or Xxxxxxxx Permits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 6.9 Tax Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 6.10 Disclosure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 6.11 Brokers' or Finders' Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE VII
CONDITIONS TO CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 7.1 Conditions Precedent to Obligations
of ASARCO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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Section 7.2 Conditions Precedent to Obligations
of Coeur d'Alene and Xxxxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE VIII
ADDITIONAL COVENANTS OF THE PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 8.1 Expenses of Transfer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 8.2 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 8.3 Publicity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE IX
INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 9.1 Indemnification by Silver Valley
Resources. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 9.2 Indemnification by ASARCO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 9.3 Indemnification by Coeur d'Alene and
Xxxxxxxx . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 9.4 Notice and Opportunity to Defend. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 9.5 Recovery for Damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE X
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 10.1 Survival of Representations,
Warranties and Indemnities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 10.2 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 10.3 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 10.4 Waivers and Amendments; Non-
Contractual Remedies; Preservation of
Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 10.5 Assignability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 10.6 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 10.7 Binding Effect. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 10.8 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 10.9 Further Assurances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 10.10 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 10.11 Coeur Agreement and Galena Lease
Termination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 10.12 Third Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 10.13 Exhibits, Schedules and Annexes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 10.14 Table of Contents; Captions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 10.15 Bulk Sales. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 10.16 Best Knowledge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
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EXHIBITS
Exhibit A Undertaking and Assumption Agreement
Exhibit B Letter Agreement
Exhibit C Management Services Agreement
SCHEDULES
Schedule 2.1 ASARCO Assets
Schedule 2.5 ASARCO Permits
Schedule 3.1 Coeur d'Alene Assets
Schedule 3.5 Coeur d'Alene Permits
Schedule 4.1 Xxxxxxxx Assets
Schedule 4.5 Xxxxxxxx Permits
Schedule 5.2 No Conflict
Schedule 5.4(a) Title to and Condition of ASARCO
Assets (Personalty)
Schedule 5.4(b) Title to ASARCO Assets (Realty)
Schedule 5.5 ASARCO Leases; ASARCO Contracts
Schedule 5.6 Litigation
Schedule 5.7(b) Third Party Consents
Schedule 5.9(a) Material Returns and Reports
Schedule 5.9(b) Material Taxes Arising Out of ASARCO
Assets
Schedule 5.9(c) Tax Inspections, Etc.
Schedule 5.9(e) Extensions and Waivers
Schedule 5.9(f) Tax Allocation Agreement
Schedule 6.2 No Conflict
Schedule 6.4(a) Title to and Condition of Coeur
d'Alene and Xxxxxxxx Assets
(Personalty)
Schedule 6.4(b) Title to Coeur d'Alene and Xxxxxxxx
Assets (Realty)
Schedule 6.5 Coeur d'Alene and Xxxxxxxx Leases;
Coeur d'Alene and Xxxxxxxx Contracts
Schedule 6.6 Litigation
Schedule 6.7(b) Third Party Consents
Schedule 6.9(a) Material Returns and Reports
Schedule 6.9(b) Material Taxes Arising Out of Coeur
d'Alene and Xxxxxxxx Assets
Schedule 6.9(c) Tax Inspections, Etc.
Schedule 6.9(e) Extensions and Waivers
Schedule 6.9(f) Tax Allocation Agreement
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ASSET CONTRIBUTION AGREEMENT
ASSET CONTRIBUTION AGREEMENT ("THIS AGREEMENT"), effective
January 1, 1995 (the "EFFECTIVE DATE"), among ASARCO Incorporated ("ASARCO"),
a New Jersey corporation, Coeur d'Xxxxx Xxxxx Corporation ("COEUR D'ALENE"), an
Idaho corporation, Xxxxxxxx Mining Corporation ("XXXXXXXX"), an Arizona
corporation, and Silver Valley Resources Corporation ("SILVER VALLEY
RESOURCES"), a Delaware corporation.
W I T N E S S E T H :
WHEREAS, ASARCO and Xxxxxxxx (as successor to Vulcan Silver
Lead Corporation) are parties to a Lease dated January 15, 1947, as amended and
supplemented, relating to the development and mining of property known as the
Galena property (the "GALENA LEASE"), and ASARCO and Coeur d'Alene (as
successor to Rainbow Mining and Milling Company, Ltd.) are parties to an
Agreement dated August 31, 1964, as amended and supplemented, relating to the
development and mining of property known as the Coeur property (the "COEUR
AGREEMENT"); and
WHEREAS, ASARCO and Coeur d'Alene desire to terminate as of
the Effective Date, the Galena Lease and the Coeur Agreement; and
WHEREAS, ASARCO and Coeur d'Alene have organized Silver Valley
Resources to develop and mine certain properties in Shoshone County, Idaho; and
WHEREAS, as of the Effective Date, each of ASARCO, Coeur
d'Alene and Xxxxxxxx (the "CONTRIBUTORS") wish to contribute, and Silver Valley
Resources wishes to accept, certain of their respective leasehold and ownership
interests in silver mining properties located in Shoshone County, Idaho and in
and to certain other assets, all as more fully described herein and as set
forth respectively on Schedule 2.1, Schedule 3.1 and Schedule 4.1 attached
hereto (such contributed interests, properties and other assets of ASARCO,
Coeur d'Alene and Xxxxxxxx are hereinafter referred to respectively as the
"ASARCO ASSETS," the "COEUR D'ALENE ASSETS," and the "XXXXXXXX ASSETS" and
collectively as the "ASSETS"); and
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WHEREAS, this Agreement sets forth the terms and conditions
upon which ASARCO, Coeur d'Alene and Xxxxxxxx will contribute assets to Silver
Valley Resources.
NOW, THEREFORE, for the mutual covenants and other
consideration described below, the parties hereto hereby covenant and agree as
follows:
ARTICLE I
CONTRIBUTION OF ASSETS AND ASSUMPTION OF LIABILITIES
Section 1.1 Contribution of Assets. Upon the terms and
subject to the conditions of this Agreement, each of the Contributors shall
contribute, transfer, convey, assign and deliver to Silver Valley Resources,
and Silver Valley Resources shall accept from the Contributors, all the
Contributors' respective rights and interests, whether tangible or intangible,
real, personal or mixed, accrued, contingent or otherwise in and to the Assets
in exchange for the consideration to be provided by Silver Valley Resources
pursuant to Section 1.2 and Section 1.3 (the "CONSIDERATION").
Section 1.2 Consideration. The Consideration for the
contribution, transfer, conveyance, assignment and delivery of the Assets by
the Contributors to Silver Valley Resources shall consist of the following:
(a) to ASARCO, shares, par value $.01 per share, of Silver
Valley Resources (the "COMMON STOCK"), which constitute 50% of the
issued and outstanding voting securities of Silver Valley Resources as
of the Effective Date;
(b) to Coeur d'Alene, shares of Common Stock, which constitute
31.5% of the issued and outstanding voting securities of Silver Valley
Resources as of the Effective Date; and
(c) to Xxxxxxxx, shares of Common Stock, which constitute
18.5% of the issued and outstanding voting securities of Silver Valley
Resources as of the Effective Date.
Section 1.3 Assumption of Liabilities. As of the Effective
Date, Silver Valley Resources will assume obligations and liabilities of
ASARCO, Coeur d'Alene and Xxxxxxxx
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with respect to the Assets described in the Undertaking and Assumption
Agreement in the form of Exhibit A attached hereto (the "UNDERTAKING AND
ASSUMPTION") and listed in Annex A thereto.
Section 1.4 No Encumbrances. The Contributors shall
contribute, transfer, convey, assign and deliver their respective Assets to
Silver Valley Resources free and clear of all liens, claims, charges,
encumbrances and security interests, except as expressly set forth in this
Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF ASARCO
CONCERNING THE ASARCO ASSET CONTRIBUTIONS
Section 2. ASARCO Assets. ASARCO hereby represents and
warrants to Coeur d'Alene, Xxxxxxxx and Silver Valley Resources on the date
hereof and as of Effective Date, that ASARCO shall have contributed, conveyed,
assigned, transferred and delivered all ASARCO's right, title and interest in
and to the following:
Section 2.1 Property, Plant and Equipment. All property,
plant and equipment of ASARCO that are used in or on the ASARCO Assets,
including those listed in Schedule 2.1 attached hereto.
Section 2.2 Books and Records. All of ASARCO's books and
records wherever located to the extent relating to the ASARCO Assets.
Section 2.3 Certain Rights of ASARCO. All of ASARCO's claims
against third parties with respect to unliquidated rights under manufacturers'
and vendors' warranties, guarantees or similar obligations relating to other
items included in the ASARCO Assets.
Section 2.4 ASARCO Contracts. Subject to Section 7.2(b)
hereof, all of ASARCO's contracts, agreements, understandings, commitments, and
leases (other than those referred to in Section 2.1 above), whether written or
oral, express or implied, relating to the ASARCO Assets and in effect on the
date hereof and as of the Effective Date (the "ASARCO CONTRACTS").
Section 2.5 ASARCO Permits. All certificates of occupancy
and all licenses, permits and authorizations, including those listed in
Schedule 2.5 attached hereto, of
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governmental or quasi-governmental agencies and authorities or private parties
relating to the construction, use, operation or enjoyment of items included in
the ASARCO Assets, to the full extent the same are transferable.
Section 2.6 Other ASARCO Assets. All other assets of ASARCO
used exclusively in and necessary to the operation of the business consisting
of the ASARCO Assets at the date hereof and as of the Effective Date in a
manner consistent with the conduct of such business prior to April 1991 (the
"SUSPENSION DATE").
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF COEUR D'ALENE
CONCERNING THE COEUR D'ALENE ASSET CONTRIBUTIONS
Section 3. Coeur d'Alene Assets. Coeur d'Alene hereby
represents and warrants to ASARCO and Silver Valley Resources on the date
hereof and as of the Effective Date, that Coeur d'Alene shall have contributed,
conveyed, assigned, transferred and delivered all Coeur d'Alene's right, title
and interest in and to the following:
Section 3.1 Property, Plant and Equipment. All property,
plant and equipment of Coeur d'Alene which are used in or on the Coeur d'Alene
Assets, including those listed in Schedule 3.1 attached hereto.
Section 3.2 Books and Records. All of Coeur d'Alene's books
and records wherever located to the extent relating to the Coeur d'Alene
Assets.
Section 3.3 Certain Rights of Coeur d'Alene. All of Coeur
d'Alene's claims against third parties with respect to unliquidated rights
under manufacturers' and vendors' warranties, guarantees or similar obligations
relating to other items included in the Coeur d'Alene Assets.
Section 3.4 Coeur d'Alene Contracts. Subject to Section
7.1(b) hereof, all of Coeur d'Alene's contracts, agreements, understandings,
commitments, and leases (other than those referred to in Section 3.1), whether
written or oral, express or implied, relating to the Coeur d'Alene Assets and
in effect on the date hereof and as of the Effective Date (the "COEUR D'ALENE
CONTRACTS").
Section 3.5 Coeur d'Alene Permits. All certificates of
occupancy and all licenses, permits and authoriza-
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tions, including those listed in Schedule 3.5 attached hereto, of governmental
or quasi-governmental agencies and authorities or private parties relating to
the construction, use, operation or enjoyment of items included in the Coeur
d'Alene Assets, to the full extent the same are transferable.
Section 3.6 Other Coeur d'Alene Assets. All other assets of
Coeur d'Alene used exclusively in and necessary to the operation of the
business consisting of the Coeur d'Alene Assets and the Xxxxxxxx Assets at the
date hereof and as of the Effective Date in a manner consistent with the
conduct of such business prior to the Suspension Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF COEUR D'ALENE AND
XXXXXXXX CONCERNING THE XXXXXXXX ASSET CONTRIBUTIONS
Section 4. Xxxxxxxx Assets. Coeur d'Alene and Xxxxxxxx
hereby represent and warrant to ASARCO and Silver Valley Resources on the date
hereof and as of the Effective Date, that Xxxxxxxx shall have contributed,
conveyed, assigned, transferred and delivered all of Xxxxxxxx'x right, title
and interest in and to the following:
Section 4.1 Property, Plant and Equipment. All property,
plant and equipment of Xxxxxxxx which are used in or on the Xxxxxxxx Assets,
including those listed in Schedule 4.1 attached hereto.
Section 4.2 Books and Records. All of Xxxxxxxx'x books and
records wherever located to the extent relating to the Xxxxxxxx Assets.
Section 4.3 Certain Rights of Xxxxxxxx. All of Xxxxxxxx'x
claims against third parties with respect to unliquidated rights under
manufacturers' and vendors' warranties, guarantees or similar obligations
relating to other items included in the Xxxxxxxx Assets.
Section 4.4 Xxxxxxxx Contracts. Subject to Section 7.1(b)
hereof, all of Xxxxxxxx'x contracts, agreements, understandings, commitments,
and leases (other than those referred to in Section 4.1), whether written or
oral, express or implied, relating to the Xxxxxxxx Assets and in effect on the
date hereof and as of the Effective Date (the "XXXXXXXX CONTRACTS").
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Section 4.5 Xxxxxxxx Permits. All certificates of occupancy
and all licenses, permits and authorizations, including those listed in
Schedule 4.5 attached hereto, of governmental or quasi-governmental agencies
and authorities or private parties relating to the construction, use, operation
or enjoyment of items included in the Xxxxxxxx Assets, to the full extent the
same are transferable.
Section 4.6 Other Xxxxxxxx Assets. All other assets of
Xxxxxxxx used exclusively in and necessary to the operation of the business
consisting of the Xxxxxxxx Assets and the Coeur d'Alene Assets at the date
hereof and as of the Effective Date in a manner consistent with the conduct of
such business prior to the Suspension Date.
ARTICLE V
FURTHER REPRESENTATIONS AND WARRANTIES
OF ASARCO
Section 5. Representations and Warranties of ASARCO. ASARCO
hereby represents and warrants to Coeur d'Alene, Xxxxxxxx and to Silver Valley
Resources that on the date hereof and as of the Effective Date:
Section 5.1 Organization, Power and Authority. (a) ASARCO is
a corporation duly organized, validly existing and in good standing under the
laws of the State of New Jersey. ASARCO has all necessary corporate power and
authority to own, lease and operate the ASARCO Assets as heretofore conducted
by ASARCO. ASARCO has all necessary corporate power and authority to enter
into and be bound by the terms and conditions of this Agreement.
(b) The execution, delivery and performance by ASARCO of this
Agreement and any agreement or instrument contemplated hereby, and the
performance by ASARCO of the transactions contemplated hereby and thereby, have
been duly authorized by all necessary corporate action. When duly executed and
delivered by the parties hereto and thereto, this Agreement and each such other
agreement and instrument will be legal, valid and binding obligations of
ASARCO, in each case enforceable against ASARCO, except as such enforceability
may be limited by bankruptcy, insolvency or other similar laws from time to
time in effect.
Section 5.2 No Conflict. Except as disclosed in Schedule 5.2
hereto, neither the execution and delivery of this Agreement nor the
consummation of the transactions
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contemplated hereby will (i) result in the creation of any Lien or Other
Encumbrance (as defined in Section 5.4) upon any of the ASARCO Assets pursuant
to the terms of any mortgage, bond, indenture, agreement, franchise or other
instrument or obligation; (ii) violate any judgment, order, injunction, decree
or award of any court, administrative agency, arbitrator or governmental body
against or affecting or binding upon, ASARCO or upon the securities, property
or business of ASARCO; or (iii) constitute a violation by ASARCO of any law or
regulation of any jurisdiction or of any agreement or instrument as such law,
regulation, agreement or instrument relates to ASARCO or to the securities,
property or business of ASARCO.
Section 5.3 Liabilities. To the best of its knowledge,
ASARCO has no material liabilities, debts or obligations, whether accrued,
absolute, contingent or otherwise, known or unknown, relating to or arising out
of the ASARCO Assets or the ownership of the ASARCO Assets, other than as
specifically disclosed in the Schedules attached hereto; provided that ASARCO
makes no representation or warranty herein relating to the absence or
non-disclosure of any such liabilities, debts or obligations relating to or
arising out of the environmental condition of the ASARCO Assets or
non-compliance with any statute, law, rule, regulation, ordinance, code or
directive relating to the environment.
Section 5.4 Ownership and Condition of Assets. (a) Except as
disclosed in Schedule 5.4(a) attached hereto, ASARCO has good and marketable
title to all of the ASARCO Assets that do not constitute real property,
including mine equipment and fixtures, free and clear of any Lien or Other
Encumbrance, except for those which do not materially detract from the value
of, or impair the use of such property by ASARCO or Silver Valley Resources in
the operations of the ASARCO Assets. For purposes of this Agreement, "LIEN OR
OTHER ENCUMBRANCE" shall mean any mortgage, lien, pledge, security interest,
claim, lease, charge, option, right of first refusal, easement, restrictive
covenant or other encumbrance, restriction or limitation other than (i) levies
not due and payable, due and payable but not yet delinquent or which are
currently being contested in good faith by appropriate proceedings and which
are specifically listed in Schedule 5.4(a) attached hereto, (ii) mechanics',
workmen's, repairmen's, materialmen's, warehousemen's, vendors' and carriers'
liens, and other similar liens arising in the ordinary course of business for
charges which are not delinquent, or which are being contested in good faith by
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appropriate proceedings and have not proceeded to judgment and which are
specifically listed in a Schedule attached hereto, and (iii) liens in respect
of judgments or awards with respect to which there shall be a good faith
current prosecution of an appeal or proceedings for review and with respect to
which there shall be secured an appropriate bond or a stay of execution pending
such appeal or proceedings for review and which are specifically listed in a
Schedule attached hereto.
(b) Except as set forth in Schedule 5.4(b), to the best of
its knowledge, ASARCO has good and marketable title in fee simple to all real
property (surface estates, mineral estates and combined surface and mineral
estates, including patented mining claims but excluding unpatented mining
claims) constituting ASARCO Assets and holds sufficient rights in and to all
easements or other rights necessary for access thereto and the substantial
realization of benefits from such easements, and owns all buildings and other
structures, improvements and fixtures on such real property. Title to such real
property is, in each case, free and clear of any Lien or Other Encumbrance
created or incurred by ASARCO, except for those which do not materially detract
from the value of, impair the use of, or have a material adverse impact on the
title to the ASARCO Assets subject thereto or on the operations of the ASARCO
Assets as conducted prior to the Suspension Date.
(c) The representations and warranties contained in the
deeds and bills of sale delivered by ASARCO pursuant to Section 7.2(d)(i) are
specifically incorporated by reference herein and, to the extent of any
conflict between the representations and warranties contained herein and
contained in such deeds or such bills of sale, the representations and
warranties contained in such deeds or such bills of sale, as applicable, shall
govern.
Section 5.5 Leases; Contracts. Set forth in Schedule 5.5
attached hereto is a list of all leased real property (surface estates, mineral
estates and combined surface and mineral estates, including patented and
unpatented mining claims) constituting ASARCO Assets and all leases under which
ASARCO or any of its affiliates is lessee or occupant of any of the ASARCO
Assets ("ASARCO LEASES"), which ASARCO Leases constitute all of the leases and
occupancy agreements entered into in connection with the operations of the
ASARCO Assets and in effect on the date hereof and as of the Effective Date.
Set forth in Schedule 5.5 attached hereto is a complete and correct list of any
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ASARCO Contracts which are material to the operation of the ASARCO Assets,
individually or as a whole. Each ASARCO Lease and each such ASARCO Contract is
valid, binding and in full force and effect and there exists no default or
event of default or event or condition which, after the giving of notice, the
lapse of time or the happening of any other event or condition would constitute
a material default or material event of default thereunder. Each of the ASARCO
Leases and each of such ASARCO Contracts is enforceable against ASARCO in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency or other similar laws.
Section 5.6 Litigation. Except as set forth in Schedule 5.6
attached hereto, there is no pending or, to the best knowledge of ASARCO,
threatened judicial, administrative or arbitral action, claim, suit or
proceeding against ASARCO or any of its affiliates or any of its or its
affiliates' properties or rights which, individually or in the aggregate, could
materially adversely affect the right or ability of ASARCO or Silver Valley
Resources to carry on the operations of the ASARCO Assets as conducted prior to
the Suspension Date or which could materially and adversely affect the
condition, whether financial or otherwise, of Silver Valley Resources or the
ASARCO Assets, or which questions the validity of this Agreement or any action
taken or to be taken in connection herewith, and to the best knowledge of
ASARCO, there is no basis for any of the foregoing.
Section 5.7 Governmental Approval; Third Party Consents. (a)
Except as to any filing required under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976 ("XXXX-XXXXX") and state and local filings required
for the transfer of properties, no consent, approval, waiver, order or
authorization of, or registration, declaration or filing with, any governmental
authority is required in connection with the execution and delivery of this
Agreement by ASARCO or the consummation by ASARCO of the transactions
contemplated hereby other than any consent required with respect to the
assignment of ASARCO Contracts, ASARCO Leases and permits of ASARCO described
in Section 5.8.
(b) Except as listed on Schedules 5.7(b) attached hereto, no
third party consents are required for the consummation of the transfer,
conveyance and assignment of the ASARCO Assets to Silver Valley Resources in
accordance with the terms of this Agreement.
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Section 5.8 Compliance with Laws; Permits. ASARCO is in
compliance in all material respects with all applicable permits, licenses,
orders or approvals of any federal, state, local or foreign governmental or
regulatory body, laws, rules, regulations, ordinances, judgments, orders,
injunctions, awards or decrees relating to the ASARCO Assets.
Section 5.9 Tax Matters. (a) Except as disclosed in Schedule
5.9(a) attached hereto, all material returns and reports for Taxes for taxable
years or periods that end on or before the date hereof and with respect to any
taxable year or period beginning before and ending after the date hereof, the
portion of such taxable year or period ending on and including the date hereof
("PRE-CLOSING PERIODS") which are required to be filed by ASARCO with respect
to the ASARCO Assets (collectively the "ASARCO RETURNS") have been filed or, if
not due to be filed, will be filed when due in a timely fashion and such ASARCO
Returns as filed are or will be complete and accurate in all material respects.
For purposes of this Agreement, "TAX" shall mean all taxes, assessments,
charges, duties, fees, levies or other governmental charges, including, without
limitation, all Federal, state, local, foreign and other income, franchise,
profits, capital gains, capital stock, transfer, sales, use, ad valorem,
occupation, property, excise, severance, gross receipts, license, payroll,
withholding, employment occupation, corporation, alternative or add-on minimum
tax and other taxes, assessments, charges, duties, fees, levies or other
governmental charges of any kind whatsoever (whether payable directly or by
withholding and whether or not requiring the filing of a return), and all
estimated taxes, deficiency assessments, additions to tax, penalties, interest
and additional amounts attributable thereto imposed by any Federal, state,
local or foreign taxing authority, including any liabilities for such amounts
as a result of being a member of either a combined, consolidated, unitary or
affiliated group.
(b) Except as disclosed in Schedule 5.9(b) attached
hereto, all material Taxes relating to or arising out of the ASARCO Assets
(whether or not shown on any ASARCO Return) which are due on or before the date
hereof have been fully paid. All Taxes relating to or arising out of the
ASARCO Assets that are due with respect to all Pre-Closing Periods are
disclosed in Schedule 5.9(b). ASARCO hereby agrees to pay and discharge all
such Taxes so disclosed or required to be disclosed other than those listed in
Annex A to the Undertaking and Assumption.
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(c) Except as disclosed in Schedule 5.9(c) attached hereto,
there is no action, suit, proceeding, investigation, audit or claim now pending
or, to the best knowledge of ASARCO, threatened by any authority regarding any
Taxes relating to ASARCO for any Pre-Closing Period which could materially and
adversely affect the ASARCO Assets or the business or operations of Silver
Valley Resources.
(d) There are no liens or security interests on any of the
ASARCO Assets that arose in connection with any failure (or alleged failure) to
pay any Taxes.
(e) Except as disclosed in Schedule 5.9(e) attached hereto,
there are no agreements for the extension or waiver of the time of assessment
of any Taxes relating to the ASARCO Assets for any Pre-Closing Period and
ASARCO has not been requested to enter into any such agreement or waiver.
(f) Except as disclosed in Schedule 5.9(f) attached hereto,
ASARCO is not now nor has been a party to any Tax allocation or sharing
agreement that could result in any liability to Silver Valley Resources.
(g) Immediately prior to, and immediately subsequent to, the
consummation of the contribution of ASARCO Assets pursuant to this Agreement,
ASARCO will be a solvent corporation. For purposes of this Agreement,
"solvent" shall mean, with respect to a Contributor, that the present fair
saleable value of the assets of such Contributor is greater than the amount
that will be required to pay its liability on its existing debts as they become
absolute and matured. ASARCO represents to Silver Valley Resources that its
contribution of the ASARCO Assets pursuant to this Agreement is not being made
with the intent to hinder, delay or defraud any of their respective creditors.
Section 5.10 Disclosure. ASARCO has made full, true and
complete responses to Coeur d'Alene's and Xxxxxxxx'x requests for information,
documents, contracts and records relating to the ASARCO Assets. To the best
knowledge of ASARCO neither this Agreement nor any statement, certificate,
writing or document furnished by ASARCO to Coeur d'Alene, Xxxxxxxx or to Silver
Valley Resources, in connection with the performance of this Agreement
contains, as of the dates of such documents, any untrue statement of a material
fact or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances in which they were made, not
misleading.
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Section 5.11 Brokers' or Finders' Fees. No broker, finder or
similar agent has been employed by or on behalf of ASARCO and no person or
entity with which ASARCO has had any dealings or communications of any kind is
entitled to any brokerage commission, finder's fee or any similar compensation,
in connection with this Agreement or the transactions contemplated hereby.
ARTICLE VI
FURTHER REPRESENTATIONS AND WARRANTIES
OF COEUR D'ALENE AND XXXXXXXX
Section 6. Representations and Warranties of Coeur d'Alene
and Xxxxxxxx. Coeur d'Alene and Xxxxxxxx hereby represent and warrant to
ASARCO and to Silver Valley Resources that on the date hereof and as of the
Effective Date:
Section 6.1 Organization, Power and Authority. (a) Coeur
d'Alene is a corporation duly organized, validly existing and in good standing
under the laws of the State of Idaho and Xxxxxxxx is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Arizona. Each of Coeur d'Alene and Xxxxxxxx has all necessary corporate power
and authority to own, lease and operate the Coeur d'Alene Assets and the
Xxxxxxxx Assets, as applicable, as heretofore conducted by Coeur d'Alene or
Xxxxxxxx. Each of Coeur d'Alene and Xxxxxxxx has all necessary corporate power
and authority to enter into and be bound by the terms and conditions of this
Agreement.
(b) The execution, delivery and performance by Coeur d'Alene
and Xxxxxxxx of this Agreement and any agreement or instrument contemplated
hereby and thereby, and the performance by Coeur d'Alene and Xxxxxxxx of the
transactions contemplated hereby and thereby, have been duly authorized by all
necessary corporate action. When duly executed and delivered by the parties
hereto and thereto, this Agreement and each such other agreement and instrument
will be legal, valid and binding obligations of each of Coeur d'Alene and
Xxxxxxxx, as applicable, in each case enforceable against Coeur d'Alene and
Xxxxxxxx, except as such enforceability may be limited by bankruptcy,
insolvency or other similar laws from time to time in effect.
Section 6.2 No Conflict. Except as disclosed in Schedule 6.2
hereto, neither the execution and delivery of this Agreement nor the
consummation of the transactions
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contemplated hereby will (i) result in the creation of any Lien or Other
Encumbrance upon any of the Coeur D'Alene Assets or the Xxxxxxxx Assets
pursuant to the terms of any mortgage, bond, indenture, agreement, franchise or
other instrument or obligation; (ii) violate any judgment, order, injunction,
decree or award of any court, administrative agency, arbitrator or governmental
body against or affecting or binding upon Coeur d'Alene or Xxxxxxxx or upon the
securities, property or business of Coeur d'Alene or Xxxxxxxx; or (iii)
constitute a violation by Coeur d'Alene or Xxxxxxxx of any law or regulation of
any jurisdiction or of any agreement or instrument as such law, regulation,
agreement or instrument relates to Coeur d'Alene or Xxxxxxxx or to the
securities, property or business of either entity.
Section 6.3 Liabilities. To the best knowledge of Coeur
d'Alene and Xxxxxxxx, neither Coeur d'Alene nor Xxxxxxxx has any material
liabilities, debts or obligations, whether accrued, absolute, contingent or
otherwise, known or unknown, relating to or arising out of the Coeur d'Alene
Assets or the Xxxxxxxx Assets or the ownership of the Coeur d'Alene Assets or
the Xxxxxxxx Assets, other than as specifically disclosed in the Schedules
attached hereto; provided that neither Coeur d'Alene nor Xxxxxxxx makes any
representation or warranty herein relating to the absence or non-disclosure of
any such liabilities, debts or obligations relating to or arising out of the
environmental condition of the Coeur d'Alene Assets or the Xxxxxxxx Assets or
non-compliance with any statute, law, rule, regulation, ordinance, code or
directive relating to the environment.
Section 6.4 Ownership and Condition of Assets. (a) Except as
disclosed in Schedule 6.4(a) attached hereto, each of Coeur d'Alene and
Xxxxxxxx has good and marketable title to all of the Coeur d'Alene or Xxxxxxxx
Assets that do not constitute real property, including mine equipment and
fixtures, free and clear of any Lien or Other Encumbrance, except for those
which do not materially detract from the value of, or impair the use of such
property by Coeur d'Alene, Xxxxxxxx or Silver Valley Resources in the
operations of the Coeur d'Alene Assets or Xxxxxxxx Assets.
(b) Except as set forth in Schedule 6.4(b), to the best
knowledge of Coeur d'Alene and Xxxxxxxx, Coeur d'Alene or Xxxxxxxx has good and
marketable title in fee simple to all real property (surface estates, mineral
estates and combined surface and mineral estates, including patented mining
claims but excluding unpatented mining claims)
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constituting Coeur d'Alene Assets or Xxxxxxxx Assets and holds sufficient
rights in and to all easements or other rights necessary for access thereto and
the substantial realization of benefits from such easements, and owns outright
all buildings and other structures, improvements and fixtures on such real
property. Title to such real property is, in each case, free and clear of any
Lien or Other Encumbrance created or incurred by Coeur d'Alene or Xxxxxxxx,
except for those which do not materially detract from the value of, impair the
use of, or have a material adverse impact on the title to the Coeur d'Alene
Assets or Xxxxxxxx Assets subject thereto or on the operations of the Coeur
d'Alene Assets or Xxxxxxxx Assets as conducted prior to the Suspension Date.
(c) The representations and warranties contained in the
deeds and bills of sale delivered by Coeur d'Alene and Xxxxxxxx pursuant to
Section 7.1(d)(i) are specifically incorporated by reference herein and, to the
extent of any conflict between the representations and warranties contained
herein and contained in such deeds or such bills of sale, the representations
and warranties contained in such deeds or such bills of sale, as applicable,
shall govern.
Section 6.5 Leases; Contracts. Set forth in Schedule 6.5
attached hereto is a list of all leased real property (surface estates, mineral
estates and combined surface and mineral estates, including patented and
unpatented mining claims) constituting Coeur d'Alene Assets or Xxxxxxxx Assets
and all leases under which Coeur d'Alene, Xxxxxxxx or any of their affiliates
is lessee or occupant of any of the Assets (respectively, the "COEUR D'ALENE
LEASES" or the "XXXXXXXX LEASES"), which Coeur d'Alene Leases and Xxxxxxxx
Leases constitute all of the leases and occupancy agreements entered into in
connection with the Coeur d'Alene Assets or Xxxxxxxx Assets and in effect on
the date hereof and as of the Effective Date. Set forth in Schedule 6.5
attached hereto is a complete and correct list of any Coeur d'Alene Contracts
and Xxxxxxxx Contracts which are material to the operation of the Coeur d'Alene
Assets or Xxxxxxxx Assets, individually or as a whole. Each Coeur d'Alene
Lease and Xxxxxxxx Lease and each such Coeur d'Alene Contract and Xxxxxxxx
Contract is valid, binding and in full force and effect and there exists no
default or event of default or event or condition which, after the giving of
notice, the lapse of time or the happening of any other event or condition
would constitute a material default or material event of default thereunder.
Each of the Coeur d'Alene Leases and Xxxxxxxx Leases and each of such Coeur
d'Alene
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Contracts and Xxxxxxxx Contracts is enforceable in each case against Coeur
d'Alene or Xxxxxxxx in accordance with its terms, except as such enforceability
may be limited by bankruptcy, insolvency or other similar laws.
Section 6.6 Litigation. Except as set forth in Schedule 6.6
attached hereto, there is no pending or, to the best knowledge of Coeur d'Alene
and Xxxxxxxx, threatened judicial, administrative or arbitral action, claim,
suit or proceeding against Coeur d'Alene or Xxxxxxxx or any of their affiliates
or any of their or their affiliate's properties or rights which, individually
or in the aggregate, could materially adversely affect the right or ability of
Coeur d'Alene, Xxxxxxxx or Silver Valley Resources to carry on the operations
of the Coeur d'Alene Assets or Xxxxxxxx Assets as conducted prior to the
Suspension Date, or which could materially and adversely affect the condition,
whether financial or otherwise, of Silver Valley Resources or the Coeur d'Alene
Assets or Xxxxxxxx Assets, or which questions the validity of this Agreement or
any action taken or to be taken in connection herewith, and to the best
knowledge of Coeur d'Alene and Xxxxxxxx, there is no basis for any of the
foregoing.
Section 6.7 Governmental Approval; Third Party Consents. (a)
Except as to any filing required under Xxxx-Xxxxx and state and local filings
required for the transfer of properties, no consent, approval, waiver, order or
authorization of, or registration, declaration or filing with, any governmental
authority is required in connection with the execution and delivery of this
Agreement by Coeur d'Alene or Xxxxxxxx or the consummation by Coeur d'Alene or
Xxxxxxxx of the transactions contemplated hereby other than any consent
required with respect to the assignment of Coeur d'Alene Contracts or Xxxxxxxx
Contracts, Leases and permits of Coeur d'Alene and Xxxxxxxx described in
Section 6.8.
(b) Except as listed on Schedule 6.7(b) attached hereto, no
third party consents are required for the consummation of the transfer,
conveyance and assignment of the Coeur d'Alene Assets and the Xxxxxxxx Assets
in accordance with this Agreement.
Section 6.8 Compliance with Laws; Coeur D'Alene Permits or
Xxxxxxxx Permits. Coeur d'Alene and Xxxxxxxx are in compliance in all material
respects with all applicable permits, licenses, orders or approvals of any
federal, state, local or foreign governmental or regulatory body, laws, rules,
regulations, ordinances, judgments, orders,
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injunctions, awards or decrees relating to the Coeur d'Alene Assets or Xxxxxxxx
Assets.
Section 6.9 Tax Matters. (a) Except as disclosed in Schedule
6.9(a) attached hereto, all material returns and reports for Taxes for all
Pre-Closing Periods which are required to be filed by or with respect to Coeur
d'Alene and Xxxxxxxx with respect to the Coeur d'Alene Assets and the Xxxxxxxx
Assets (collectively the "COEUR D'ALENE RETURNS") have been filed or, if not
due to be filed, will be filed when due in a timely fashion and such Coeur
d'Alene Returns as filed are or will be complete and accurate in all material
respects.
(b) Except as disclosed in Schedule 6.9(b) attached
hereto, all material Taxes relating to or arising out of the Coeur d'Alene
Assets or the Xxxxxxxx Assets (whether or not shown on any Coeur d'Alene
Return) which are due on or before the date hereof have been fully paid. All
Taxes relating to or arising out of the Coeur d'Alene Assets or the Xxxxxxxx
Assets that are due with respect to all Pre-Closing Periods are disclosed in
Schedule 6.9(b). Coeur d'Alene and Xxxxxxxx agree to pay and discharge all
such Taxes so disclosed or required to be disclosed, other than those listed in
Annex A to the Undertaking and Assumption.
(c) Except as disclosed in Schedule 6.9(c) attached hereto,
there is no action, suit, proceeding, investigation, audit or claim now pending
or, to the best knowledge of Coeur d'Alene and Xxxxxxxx, threatened by any
authority regarding any Taxes relating to Coeur d'Alene or Xxxxxxxx for any
Pre-Closing Period which could materially and adversely affect the Coeur
d'Alene Assets or the Xxxxxxxx Assets or the operations or business of Silver
Valley Resources.
(d) There are no liens or security interests on any of the
Coeur d'Alene Assets or the Xxxxxxxx Assets that arose in connection with any
failure (or alleged failure) to pay any Taxes.
(e) Except as disclosed in Schedule 6.9(e) attached hereto,
there are no agreements for the extension or waiver of the time of assessment
of any Taxes relating to the Coeur d'Alene Assets or the Xxxxxxxx Assets for
any Pre-Closing Period and neither Coeur d'Alene nor Xxxxxxxx has been
requested to enter into any such agreement or waiver.
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(f) Except as disclosed in Schedule 6.9(f) neither Coeur
d'Alene nor Xxxxxxxx is now nor has either been a party to any Tax allocation
or sharing agreement that could result in any liability to Silver Valley
Resources.
(g) Immediately prior to, and immediately subsequent to, the
consummation of the contribution of Coeur d'Alene Assets and the Xxxxxxxx
Assets pursuant to this Agreement, Coeur d'Alene and Xxxxxxxx will be solvent
corporations. Coeur d'Alene and Xxxxxxxx represent to Silver Valley Resources
that their respective contributions of the Coeur d'Alene Assets and the
Xxxxxxxx Assets pursuant to this Agreement are not being made with the intent
to hinder, delay or defraud any of their respective creditors.
Section 6.10 Disclosure. Coeur d'Alene and Xxxxxxxx have
made full, true and complete responses to ASARCO requests for information,
documents, contracts and records relating to the Coeur d'Alene Assets or the
Xxxxxxxx Assets. To the best knowledge of Coeur d'Alene and Xxxxxxxx neither
this Agreement nor any statement, certificate, writing or document furnished by
either of Coeur d'Alene or Xxxxxxxx to ASARCO or Silver Valley Resources, in
connection with the performance of this Agreement contains, as of the dates of
such documents, any untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading.
Section 6.11 Brokers' or Finders' Fees. No broker, finder or
similar agent has been employed by or on behalf of Coeur d'Alene or Xxxxxxxx,
and no person or entity with which Coeur d'Alene or Xxxxxxxx has had any
dealings or communications of any kind is entitled to any brokerage commission,
finder's fee or any similar compensation, in connection with this Agreement or
the transactions contemplated hereby.
ARTICLE VII
CONDITIONS TO CLOSING
Section 7.1 Conditions Precedent to Obligations of ASARCO.
The obligation of ASARCO to contribute the ASARCO Assets under this Agreement
is subject to the fulfillment, prior to or at the date hereof, of each of the
following conditions (any or all of which may be waived by ASARCO):
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(a) Silver Valley Resources shall have delivered to
ASARCO the Consideration in exchange for the contribution and transfer
of the ASARCO Assets.
(b) Coeur d'Alene and Xxxxxxxx shall have obtained the
consent to the assignment of any Coeur d'Alene Contract, Xxxxxxxx
Contract, Coeur d'Alene Lease and Xxxxxxxx Lease, as applicable, or
any claim, right or benefit arising thereunder or resulting therefrom,
if consent is required for effective assignment thereof to Silver
Valley Resources or to avoid a breach. In addition, Coeur d'Alene and
Xxxxxxxx shall have obtained the consents to the transfer, conveyance
and assignment to Silver Valley Resources of all other Coeur d'Alene
Assets or Xxxxxxxx Assets, as applicable, if consent is required for
effective transfer, conveyance and assignment thereof or to avoid a
breach.
(c) The parties shall have executed and delivered a letter
agreement in the form attached hereto as Exhibit B (the "LETTER
AGREEMENT").
(d) Coeur d'Alene and Xxxxxxxx shall each have delivered, or
caused to be delivered, to Silver Valley Resources (i) executed deeds
in proper form for recording, bills of sale or certificates of title
containing covenants or warranties of title, each dated the date
hereof and effective as of the Effective Date, transferring to Silver
Valley Resources the Coeur d'Alene Assets and the Xxxxxxxx Assets, as
applicable, in accordance with this Agreement and (ii) all such
further instruments of conveyance, assignment and further assurance as
may reasonably be required in order to vest in and confirm to Silver
Valley Resources all right, title and interest in and to the Coeur
d'Alene Assets and the Xxxxxxxx Assets.
(e) Silver Valley Resources and Coeur d'Alene shall have
executed and delivered a Management Services Agreement substantially
in the form attached hereto as Exhibit C (the "MANAGEMENT SERVICES
AGREEMENT") and Silver Valley Resources shall have executed and
delivered the Undertaking and Assumption with respect to the ASARCO
Assets.
(f) Each of Coeur d'Alene and Xxxxxxxx shall have furnished
to Silver Valley Resources a non-foreign person affidavit as required
by Section 1445 of the Internal Revenue Code of 1986, as amended (the
"CODE").
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(g) Coeur d'Alene and Xxxxxxxx shall each have delivered to
Silver Valley Resources or ASARCO, as applicable, all other documents
and certificates required to be delivered hereunder by Coeur d'Alene
and Xxxxxxxx at or prior to Closing.
Section 7.2 Conditions Precedent to Obligations of Coeur
d'Alene and Xxxxxxxx. The obligations of Coeur d'Alene and Xxxxxxxx to
contribute the Coeur d'Alene Assets and the Xxxxxxxx Assets under this
Agreement are subject to the fulfillment, prior to or at the date hereof, of
each of the following conditions (any or all of which may be waived by Coeur
d'Alene or Xxxxxxxx):
(a) Silver Valley Resources shall have delivered the
Consideration to each of Coeur d'Alene and Xxxxxxxx in exchange for
the contribution and transfer of the Coeur d'Alene Assets and Xxxxxxxx
Assets.
(b) ASARCO shall have obtained the consent to the assignment
of any ASARCO Contract and ASARCO Lease, as applicable, or any claim,
right or benefit arising thereunder or resulting therefrom, if consent
is required for effective assignment thereof to Silver Valley
Resources or to avoid a breach. In addition, ASARCO shall have
obtained the consents to the transfer, conveyance and assignment to
Silver Valley Resources of all other ASARCO Assets if consent is
required for effective transfer, conveyance and assignment thereof or
to avoid a breach.
(c) The parties shall have executed and delivered the Letter
Agreement.
(d) ASARCO shall have delivered, or caused to be delivered,
to Silver Valley Resources the following (i) executed deeds in proper
form for recording, bills of sale or certificates of title containing
covenants or warranties of title, each dated the date hereof and
effective as of the Effective Date, transferring to Silver Valley
Resources the ASARCO Assets in accordance with this Agreement and (ii)
all such further instruments of conveyance, assignment and further
assurance as may reasonably be required in order to vest in and
confirm to Silver Valley Resources all right, title and interest in
and to the ASARCO Assets.
(e) ASARCO and Silver Valley Resources shall have executed
and delivered the Management Services Agreement
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and Silver Valley Resources shall have executed and delivered
the Undertaking and Assumption with respect to the Coeur d'Alene
Assets and the Xxxxxxxx Assets.
(f) ASARCO shall have furnished to Silver Valley Resources a
non-foreign person affidavit as required by Section 1445 of the Code.
(g) ASARCO shall have delivered to Silver Valley Resources,
Coeur d'Alene or Xxxxxxxx, as applicable, all other documents and
certificates required to be delivered by Coeur d'Alene and Xxxxxxxx
hereunder at or prior to Closing.
ARTICLE VIII
ADDITIONAL COVENANTS OF THE PARTIES
Section 8.1 Expenses of Transfer. Except as otherwise
provided elsewhere in this Agreement, ASARCO, Coeur d'Alene and Xxxxxxxx shall
each bear their own direct and indirect expenses incurred in connection with
the negotiation and preparation of this Agreement and all related documents,
and the consummation and performance of the transactions contemplated hereby.
All stamp, transfer, documentary, sales, use, recordation, registration, and
other such taxes and fees (including any penalties and interest) incurred in
connection with this Agreement and the transactions contemplated hereby
(collectively the "TRANSFER TAXES") shall be paid by ASARCO with respect to the
ASARCO Assets and by Coeur d'Alene with respect to the Coeur d'Alene Assets and
the Xxxxxxxx Assets. Each of ASARCO, Coeur d'Alene and Xxxxxxxx shall properly
file, on a timely basis, all necessary tax returns, reports, forms and other
documentation with respect to any Transfer Taxes and ASARCO and Coeur d'Alene
shall provide to each other, and Xxxxxxxx shall provide to ASARCO, evidence of
payment of all Transfer Taxes. ASARCO, Coeur d'Alene and Xxxxxxxx each agree to
cooperate to obtain all available exemptions from the payment of any such
expenses of transfer.
Section 8.2 Confidentiality. Each party hereto will hold and
will cause its consultants and advisors to hold in strict confidence, unless
compelled to disclose by judicial or administrative process or, in the opinion
of its counsel, by other requirements of law, all documents and information
concerning the other parties to this Agreement furnished it by such other
parties or their representatives in connection with the transactions
contemplated by this
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Agreement (except to the extent that such information can be shown to have been
(i) previously known by the party to which it was furnished, (ii) in the
public domain through no fault of such party, or (iii) later lawfully acquired
from other sources by the party to which it was furnished), and each party will
not release or disclose such information to any other person, except its
auditors, attorneys, financial advisors, bankers and other consultants and
advisors in connection with this Agreement. If the transactions contemplated by
this Agreement are not consummated, such confidence shall be maintained except
to the extent such information comes into the public domain through no fault of
the party required to hold it in confidence, and such information shall not be
used to the detriment of, or in relation to any investment in, the other
parties and all such documents (including copies thereof) shall be returned to
the other parties immediately upon their written request. Each party shall be
deemed to have satisfied its obligation to hold confidential information
concerning or supplied by the other parties if it exercises the same care as it
takes to preserve confidentiality for its own similar information.
Section 8.3 Publicity. Neither ASARCO nor Coeur d'Alene nor
Xxxxxxxx shall make or issue, or cause to be made or issued, any announcement
or written statement concerning this Agreement or the transactions contemplated
hereby for dissemination to the general public without the prior consent of the
others, and Silver Valley Resources shall not make or issue, or cause to be
made or issued, any announcement or written statement concerning this Agreement
or the transactions contemplated hereby for dissemination to the general public
without the prior consent of ASARCO, Coeur d'Alene and Xxxxxxxx. This
provision shall not apply, however, to any announcement or written statement
required to be made by law or the regulations of any federal or state
governmental agency or any stock exchange, except that the party required to
make such announcement shall, whenever practicable, consult with the other
parties concerning the timing and content of such announcement before such
announcement is made.
ARTICLE IX
INDEMNIFICATION
Section 9.1 Indemnification by Silver Valley Resources.
Silver Valley Resources agrees to defend, indemnify and hold harmless ASARCO,
Coeur d'Alene, Xxxxxxxx, their directors, officers, employees, agents and
affiliates
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from and against all costs, damages, losses, Taxes, penalties or expenses
(including, without limitation, attorneys' fees and expenses) ("DAMAGES")
suffered or paid directly or indirectly, as a result of, relating to or arising
out of: (a) any claim (including environmental claims) based on any act or
omission of Silver Valley Resources, or (b) any claim (including environmental
claims) to the extent related to the condition or operation of the Assets or
other assets of Silver Valley Resources (subject to Section 9.2 and Section
9.3); provided, however, that the foregoing indemnity of Silver Valley
Resources shall not apply to any claims of the Coeur d'Alene Tribe of Idaho
(the "TRIBE") for "Covered Matters" as defined in the Settlement Agreement by
and among the Tribe, Xxxxxxxx and Coeur d'Alene, dated December 31, 1991. As
between the parties hereto any claims of the Tribe arising from the Assets
prior to the date such Assets are transferred to Silver Valley Resources shall
be governed by the Coeur Agreement, the Galena Lease, any other applicable
existing agreement, or applicable law.
Section 9.2 Indemnification by ASARCO. ASARCO agrees,
subject to the other terms and conditions of this Article IX and Section 10.1,
to indemnify, defend and hold Silver Valley Resources, Coeur d'Alene and
Xxxxxxxx and their respective directors, officers, shareholders, employees,
affiliates and agents harmless from and against any and all Damages based upon,
arising out of or otherwise in respect of any inaccuracy in or any breach of
any representation, warranty, covenant or agreement of ASARCO contained in this
Agreement or in any certificate, agreement, document or instrument delivered
pursuant to this Agreement.
Section 9.3 Indemnification by Coeur d'Alene and Xxxxxxxx.
Coeur d'Alene and Xxxxxxxx agree, subject to the other terms and conditions of
this Article IX and Section 10.1, to indemnify, defend, and hold Silver Valley
Resources and ASARCO and their respective directors, officers, shareholders,
employees, affiliates and agents harmless from and against any and all Damages
based upon, arising out of or otherwise in respect of any inaccuracy in or any
breach of any representation, warranty, covenant or agreement of Coeur d'Alene
or Xxxxxxxx contained in this Agreement or in any certificate, agreement,
document or instrument delivered pursuant to this Agreement.
Section 9.4 Notice and Opportunity to Defend. Promptly after
receipt by any party hereto of the assertion of any claim in respect of Damages
or discovery of any fact upon which such party expects to make a claim for
indemnifi-
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cation hereunder, such party shall give the party who may become obligated to
provide indemnification hereunder (the "INDEMNIFYING PARTY") written notice
describing such claim or fact in reasonable detail (the "NOTICE OF CLAIM").
The Indemnifying Party shall have the right, at its option, to compromise or
defend, at its own expense and by its own counsel, any such matter involving
the asserted liability of the party seeking such indemnification as to which
the Indemnifying Party shall have promptly acknowledged its obligation to
provide indemnification hereunder. Such Notice of Claim, and the opportunity
to compromise or defend, shall be a condition precedent to any liability of the
Indemnifying Party hereunder with respect to the claim or fact described in
such Notice of Claim. If the Indemnifying Party shall undertake to compromise
or defend any such asserted liability, it shall promptly notify the party
seeking indemnification of its intention to do so, and the party seeking
indemnification agrees to cooperate with the Indemnifying Party and its counsel
in the compromise of, or defense against, any such asserted liability. All
costs and expenses incurred in connection with such cooperation shall be borne
by the Indemnifying Party. In any event, the indemnified party shall have the
right at its own expense to participate in the defense of such asserted
liability.
Section 9.5 Recovery for Damages. Where Silver Valley
Resources, ASARCO, Coeur d'Alene or Xxxxxxxx recover on a claim for Damages
from an unrelated third party, including, without limitation, an insurance
company, payments for indemnification pursuant to this Article IX in respect of
any such claim shall be net (after payment of costs of recovery and allocable
costs of obtaining and maintaining the insurance which provided same) of any
such recoveries on such claim received prior to such payment pursuant to this
Article IX, by the party to be indemnified (the "INDEMNITEE"), and where such
recoveries are received by the Indemnitee after payment pursuant to this
Article IX is made to the Indemnitee, the Indemnitee will remit to the
Indemnifying Party such portion of such recoveries (after payment of costs of
recovery and allocable costs of obtaining and maintaining the insurance which
provided same) as is necessary to prevent double recovery up to the amount paid
to the Indemnitee on such claim by the Indemnifying Party.
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ARTICLE X
MISCELLANEOUS
Section 10.1 Survival of Representations, Warranties and
Indemnities. All representations, warranties, and indemnities of Silver Valley
Resources, ASARCO, Coeur d'Alene and Xxxxxxxx in this Agreement shall survive
the execution and delivery of this Agreement and the Closing, and shall not be
merged into the deeds or other instruments of conveyance delivered pursuant to
this Agreement, but shall extend as to any claim for which a Notice of Claim
has been submitted therefore for the applicable period of the relevant statute
of limitations.
Section 10.2 Notices. Any notice or other communication
required or permitted hereunder shall be in writing and shall be sufficiently
given if delivered in person or sent by telex or telecopier or by certified or
registered mail, postage prepaid, addressed as follows:
(i) if to Silver Valley Resources, at:
Silver Valley Resources Corporation
Attention: Chairman
c/o ASARCO Incorporated
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
with a copy to: President
c/o Coeur d'Xxxxx Xxxxx Corporation
000 Xxxxx Xxxxxx
Xxxxx x'Xxxxx, Xxxxx 00000
(ii) if to Coeur d'Alene, at:
Coeur d'Xxxxx Xxxxx Corporation
000 Xxxxx Xxxxxx
Xxxxx x'Xxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
with a copy to:
Attention: Xxxxxxx X. Xxxx
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(iii) if to Xxxxxxxx, at:
Xxxxxxxx Mining Corporation
000 Xxxxx Xxxxxx
Xxxxx x'Xxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
with a copy to:
Attention: Xxxxxxx X. Xxxx
(iv) if to ASARCO, at:
ASARCO Incorporated
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: General Counsel
with a copy to:
White & Case
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx, Esq.
Any party may, by notice given in accordance with this Section 10.2 to the
other parties, designate another address or person for receipt of notices
hereunder. Such notice or other communication shall be deemed to have been
given as of the date so delivered (in the case of deliveries in person), or as
of the date so sent (in the case of deliveries by telecopier), or as of the
fifth calendar day after the date so mailed (in the case of deliveries made by
registered or certified mail).
Section 10.3 Entire Agreement. This Agreement (including the
Exhibits and Schedules attached hereto) contains the entire agreement of the
parties with respect to the contribution and transfer of the Assets by ASARCO,
Coeur d'Alene and Xxxxxxxx and the issuance and delivery of stock by Silver
Valley Resources and supersedes all prior agreements, representations and
warranties, written or oral, with respect thereto.
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Section 10.4 Waivers and Amendments; Non-Contractual
Remedies; Preservation of Remedies. This Agreement may be amended, superseded,
cancelled, renewed or extended, and the terms hereof may be waived, only by a
written instrument signed by the parties or, in the case of a waiver, by the
party waiving compliance. No delay on the part of Silver Valley Resources,
ASARCO, Coeur d'Alene or Xxxxxxxx in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any waiver on the part
of Silver Valley Resources, ASARCO, Coeur d'Alene or Xxxxxxxx of any such
right, power or privilege, or any single or partial exercise of any such right,
power or privilege, preclude any further exercise thereof or the exercise of
any other such right, power or privilege.
Section 10.5 Assignability. This Agreement and the rights
and obligations of the parties hereunder shall not be assignable by any of the
parties hereto without the prior written consent of the other parties.
Section 10.6 Governing Law. This Agreement shall be
governed and construed in accordance with the laws of the State of Delaware,
without reference to the conflict of laws provisions thereof; except that all
issues arising under this Agreement to the extent pertaining to the real or
personAL property or property rights shall be governed and construed in
accordance with the laws of the State of Idaho.
Section 10.7 Binding Effect. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective successors
and assigns.
Section 10.8 Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute one and the same instrument.
Section 10.9 Further Assurances. (a) ASARCO, Coeur d'Alene
and Xxxxxxxx shall, at the request of Silver Valley Resources, at any time and
from time to time following the Closing promptly execute and deliver, or cause
to be executed and delivered, to Silver Valley Resources all such further
instruments and take all such further action as Silver Valley Resources may
reasonably request to more effectively transfer to Silver Valley Resources, or
to perfect or record Silver Valley Resources' title to or interest in, or to
enable Silver Valley Resources to use, the Assets or otherwise to confirm or
carry out the provisions
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and intent of this Agreement, including, without limitation, assistance in the
collection or reduction to possession of any such Assets.
(b) Without limiting the generality of the foregoing, if a
required consent to the assignment of any ASARCO Contract, ASARCO Lease, Coeur
d'Alene Contract, Coeur d'Alene Lease, Xxxxxxxx Contract or Xxxxxxxx Lease
pursuant to this Agreement has not been obtained by the date hereof effective
as of the Effective Date, or if an attempted assignment of any such contract or
lease would be ineffective, ASARCO, Coeur d'Alene or Xxxxxxxx, as applicable,
shall continue to use all commercially reasonable efforts to obtain such
consent after the date hereof, and Silver Valley Resources shall use all
commercially reasonable efforts to perform the obligations under such contract
or lease in the name of ASARCO, Coeur d'Alene, or Xxxxxxxx, as applicable.
ASARCO, Coeur d'Alene and Xxxxxxxx, as applicable, shall cooperate with Silver
Valley Resources in any commercially reasonable arrangement designed to provide
for Silver Valley Resources all of the benefits, and for Silver Valley
Resources to assume the burdens, liabilities, obligations and expenses under
any such contract or lease.
Section 10.10 Severability. If any term or other provision
in this Agreement is invalid, illegal or unenforceable by any rule or law or
public policy, all other conditions and provisions in this Agreement shall
nevertheless remain in full force and effect so long as the economic and legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that transactions contemplated hereby are fulfilled to the extent possible.
Section 10.11 Coeur Agreement and Galena Lease Termination.
Effective as of the Effective Date, the Coeur Agreement and the Galena Lease
are hereby terminated, except for the purposes specifically referred to in this
Agreement and the Undertaking and Assumption or in any other agreement or
document contemplated hereby.
Section 10.12 Third Parties. Except as specifically set
forth or referred to herein, nothing herein expressed or implied is intended or
shall be construed to
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confer upon or give to any person or corporation other than the parties hereto
and their successors or assigns and the beneficiaries of contractual
indemnification expressly set forth herein, any rights or remedies under or by
reason of this Agreement.
Section 10.13 Exhibits, Schedules and Annexes. All Exhibits
and Schedules attached hereto and Annexes attached thereto are hereby
incorporated in and made a part of this Agreement as if set forth in full
herein. Any matter disclosed in any Schedule or Annex referred to herein shall
be deemed also to have been disclosed in any other applicable Schedule or Annex
referred to herein.
Section 10.14 Table of Contents; Captions. The table of
contents and article and section titles or captions contained in this Agreement
or in any Exhibit or Schedule attached hereto or referred to herein are for
convenience only, shall not be deemed a part of this Agreement and shall not
affect the meaning or interpretation of this Agreement.
Section 10.15 Bulk Sales. Silver Valley Resources, ASARCO,
Coeur d'Alene and Xxxxxxxx hereby waive compliance with applicable provisions,
if any, of Idaho bulk sales law.
Section 10.16 Best Knowledge. Where any representation or
warranty contained in this Agreement is expressly qualified by reference to
"the best knowledge" of a party hereto or by words of similar import, such
phrase shall mean the actual knowledge of such party after due inquiry.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers hereunto duly authorized
as of the 6th day of January, 1995.
SILVER VALLEY RESOURCES CORPORATION
By
---------------------------------
Name: Xxxxxxx de X. Xxxxxxx
Title: Chairman
ASARCO INCORPORATED
By
---------------------------------
Name: Xxxxxxx de X. Xxxxxxx
Title: Chairman and Chief Executive
Officer
COEUR D'XXXXX XXXXX CORPORATION
By
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chairman, President, and
Chief Executive Officer
XXXXXXXX MINING CORPORATION
By
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
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